Directorate Of Revenue ... vs Mohd. Anwar Khan
2013 Latest Caselaw 3249 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            CRL.L.P. 403/2013

                                                      Decided on 29.07.2013

IN THE MATTER OF :
DIRECTORATE OF REVENUE INTELLIGENCE                  ..... Petitioner
                   Through: Mr. Satish Aggarwala, Advocate with
                   Mr. Sushil Kaushik, Advocate


                          versus


MOHD. ANWAR KHAN                                             ..... Respondent
                          Through: None

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

1. The present Criminal Leave Petition has been filed by the

petitioner/Directorate of Revenue Intelligence (in short „DRI‟) under

Section 378(iv) of the Cr.PC against the judgment of acquittal dated

18.03.2013 passed by the Special Judge for NDPS cases, Saket, New

Delhi.

2. Before referring to the grounds raised by the learned counsel for the

petitioner/DRI for seeking leave to file an appeal against the aforesaid

judgment, it is deemed appropriate to briefly refer to the relevant facts of

the case.

3. In brief, the facts of the case are that on 08.07.2009, the

Intelligence Officer of DRI, Headquarters had received a secret

information that at about 8.00 PM, the respondent would reach at a bus

stop near the road leading to Delhi, opposite Sanjay Gandhi Transport

Nagar for taking a public transport and he would be carrying some

narcotic substance on his person or in a bag. After reducing the

aforementioned information into writing, the Deputy Director, DRI was

approached for permission to take steps to conduct search and seize the

aforesaid narcotic substance. Two public witnesses, PW3 and PW4 had

also been joined for recovery of the narcotic substance.

4. The raiding team led by the IO (PW2) had reached the spot and he

confronted the respondent and asked him about the contents of the „Nike‟

brand bag that he was carrying, to which he had replied that the same

contained his personal belongings. The respondent was then told that his

search for seizure of the narcotic substance was to be conducted and the

petitioner claims that the DRI officers had given a notice to the

respondent under Section 50 of the NDPS Act (Ex.PW2/A), in the

presence of the panch witnesses while explaining to him his legal rights to

get his person and the aforesaid bag searched in the presence of a

Gazetted Officer or Magistrate. As per the DRI, the respondent had given

a written reply to the aforesaid notice in his own handwriting and he had

agreed that his search be conducted before a Gazetted Officer of the DRI

in its office, and not at the place of his interception.

5. The respondent was then escorted to the office of the DRI and in

the course of the search of the „Nike‟ bag carried by him, ten cloth

packets bearing some rubber stamp marking were recovered. The said

packets were found to contain transparent polythene packets, that

contained some off-white coloured powdery/granular substance, emitting

a strong pungent smell. A small quantity of the substance was collected

from each packet and tested. The result of the test was positive for

heroine. The gross weight of the ten packets was found to be 10.258 kg

and the net weight of the heroine contained therein was 10.056 kg. All

the above packets were seized by PW2 for violation of the provisions of

the NDPS Act. Thereafter, the respondent was arrested and remanded to

judicial custody.

6. After recording the statements of the two panch witnesses (PW3

and PW4), a complaint for the offence punishable under Sections 21 of

the NDPS Act was filed against the respondent on 24.12.2009 and

cognizance thereof was taken on the same day. Vide order dated

26.02.2010, charge for the aforesaid offence was framed, whereafter

evidence was directed to be led by both sides. In support of its case, the

prosecution had examined a total of twelve witnesses, the details whereof

have been furnished in paras 12 to 24 of the impugned judgment. After

conclusion of the prosecution evidence, the statement of the respondent

was recorded under Section 313 Cr.PC. However, no defence evidence

was led by him. After hearing the arguments of both sides and examining

the evidence placed on record, the special court concluded that the

prosecution had failed to prove its charge and the guilt of the respondent

for the offence punishable under Section 21(c) of the NDPS Act beyond

reasonable doubt and therefore, the respondent was acquitted of the

offence by giving him the benefit of doubt.

7. Aggrieved by the aforesaid judgment, the petitioner/DRI has filed

the present Criminal Leave Petition. Mr. Satish Aggarwala, Advocate

appearing for the petitioner/DRI assails the impugned judgment by

submitting that the special court had made an erroneously observation in

respect of the notice issued under Section 50 of the NDPS Act. He

submits that once the court had concluded that no notice under Section

50 of the NDPS Act was required to be served in the present case, it was

not required to examine the genuineness of the said notice, and despite

making an observation that the said notice was not mandatory in nature,

the same was taken into consideration for acquitting the respondent.

Secondly, it was argued that after discussing the statement tendered by

the respondent under Section 67 of the NDPS Act (Ex.PW2/D), the court

below had discarded the retraction application filed by the respondent

after a period of two and a half months and having done so, it ought to

have relied on the statement of the respondent made under Section 67 of

the NDPS Act for indicting him.

8. The principles governing the scope of interference in an appeal

against acquittal are well settled. The Supreme Court had summarized

these principles in the case of Chandrappa and Ors. vs. State of

Karnataka, reported as 2007, Crl. L.J. 2136 when it had observed that

the Code of Criminal Procedure, 1973 puts no limitation or restriction on

the power of the courts to re-appreciate or review the evidence upon

which the order of acquittal is founded. However, an appellate court

must bear in mind that in case of an acquittal, there is a double

presumption in favour of the accused. The fundamental principle of

criminal jurisprudence that every person shall be presumed to be innocent

unless he is proved guilty by a competent court of law coupled with an

acquittal by a trial court re-affirms the innocence of the accused. Lastly,

the Supreme Court had held that when two reasonable conclusions are

possible on the basis of the evidence on record, ordinarily, the appellate

court should not disturb the finding of acquittal recorded by the trial

court.

9. The Court shall consider the submissions made by learned counsel

for the petitioner in the light of the aforesaid principles. The first

contention of the learned counsel for the petitioner/DRI is with regard to

the provisions of Section 50 of the NDPS Act and compliance thereof. A

perusal of para 31 of the impugned judgment reveals that the court had

taken notice of the fact that as per the settled law, the provisions of

Section 50 of the NDPS Act are to be complied with mandatorily and the

accused has a legal right to be apprised of the fact that he has an option

to have his search conducted in the presence of a Gazetted Officer or a

Magistrate for recovery of any contraband substance. However, it was

observed that in the present case, „nearest recovery‟ of heroine had not

been effected from the person of the respondent as the said substance

was lying in a bag that he was carrying and in such circumstances, no

notice was legally required to be served on him. The learned Judge went

on to opine that merely because the notice served on the respondent had

not mentioned the word "nearest", it cannot be assumed that the

provisions of Section 50 of the NDPS Act had not been complied with as

substantial compliance thereof had been made by the Department.

10. The grievance of the petitioner/DRI is that having held that

substantial compliance of the notice under Section 50 of the NDPS Act

had been made by the Department, the special court had erroneously

observed in para 32 of the impugned judgment that there were various

discrepancies in the prosecution evidence that would clearly suggest that

the aforesaid notice (Ex.PW2/B) was actually served upon the respondent

at the place where he was intercepted, and the same is a fake document

which had not come into existence at the alleged time and place, but was

created subsequently, thus giving a serious blow to the trustworthiness of

the prosecution story.

11. No doubt, the special court has held that the mandatory provisions

of Section 50 of the NDPS Act had been complied with by the petitioner in

the present case, but the observations that have been made by the trial

court subsequent thereto were only to highlight the fact that apart from

the service of the aforesaid notice, the prosecution ought to have made

out a fairly credible case against the respondent by substantiating its

story through ocular and documentary evidence, which it had failed to do.

12. The impugned judgment has noticed the fact that the respondent

comes from a financially weak background and had studied only upto

class 10 and he was unaware of the meaning of the acronym "DRI".

Therefore, for him to allege that he was feeling insecure at the spot from

where he was apprehended and instead, he had expressed a desire that

he be taken to the office of the DRI for proceedings to be conducted

there, seemed improbable. Referring to the testimony of the IO (PW2),

the Court had observed that the said IO had not stated anywhere that he

had taken any testing kit or sealing material at the spot. Instead, during

his cross-examination, he had admitted that he had not made any enquiry

from the respondent as to why the place of his apprehension was found to

be unsafe for conducting his search. Further, the evidence brought on

record had revealed that the seal of the DRI that is used for sealing the

case property was got issued by PW2 on 09.07.2009, i.e., one day after

the date of apprehension of the respondent from the spot at 8 PM on

08.07.2009. Noting the aforesaid glaring discrepancies in the prosecution

evidence, the trial court had observed that the aforesaid notice

purportedly issued under Section 50 of the NDPS Act seemed to have

been created on a subsequent date.

13. As for the second leg of argument urged by the counsel for the

petitioner/DRI that the trial court ought to have taken into consideration

the statement of the respondent that was recorded under Section 67 of

the NDPS Act (Ex.PW2/D) and that itself was sufficient evidence to have

held him guilty of the offence alleged in the present case, it is relevant to

refer the observations made from paras 45 onwards of the impunged

judgment. In the aforesaid paras, the special court had taken notice of

the arguments canvassed by the petitioner/DRI that the statement of the

respondent being a voluntary statement, given in his own handwriting,

containing his admission with regard to the contraband substance

recovered from him, had remained undisputed. The court also referred to

the retraction application filed by the respondent on 25.09.2009, after

lapse of about two and a half months from the date of his tendering a

statement (Ex.PW2/D) and it had observed that the said application did

not contain the signatures or the thumb impression of the respondent and

it was a typed application signed by the counsel for the respondent at the

relevant time.

14. The aforesaid retraction application of the respondent was however

discarded by the Special Court in the light of the decision of the Supreme

Court in the case of Kanhaiya Lal vs. Union of India reported as 2008

(1) JCC (Narcotics) 23, that such a retraction statement ought to be

proved on record as per the provisions of the Evidence Act and it is for

the maker of the statement to establish that the earlier statement made

by him was involuntary and had been extracted by illegal means. After

discussing the credibility of the retraction statement of the respondent,

the trial court was of the opinion that his statement as recorded in

Ex.PW2/D did not appear to be voluntary in the light of the other evidence

produced by the prosecution. Instead, the Court noticed that there was

manipulation of documents in the present case. In support of the said

observation, the court had noticed that the petitioner/DRI had not been

able to place on record any independent material to corroborate the

aforesaid statement allegedly made by the respondent.

15. The discrepancies in the evidence led by the prosecution and

recorded by the court related to two public witnesses, namely, Shri

Shyam Lal (PW3) and Shri Adam (PW4), who were allegedly joined by the

IO, PW2 at the time of raid. In his testimony, PW4 had stated that he

had not even visited the area where the raid had taken place and was

unaware of the present case. He had further stated that he was an

illiterate person and only knew how to sign in Hindi and that he had not

visited the spot at Sanjay Gandhi Transport Nagar on the date of incident.

The aforesaid witness was declared hostile. Coming to the next public

witness, Shri Shyam Lal (PW3), material contradictions were found in his

deposition as compared to the deposition of the IO, PW2 with regard to

certain aspects pertaining to the apprehension of the respondent. The

same have been duly brought out in para 36 of the impugned judgment.

16. One of such glaring discrepancy noticed by the trial court was that

as per the IO (PW2), after the respondent was apprehended, upon being

asked about the presence of contraband substance on his person or in his

bag, he had replied in the negative and he was introduced to the public

witnesses before being questioned again regarding possession of

contraband substance. However, according to the public witness (PW3),

he was not introduced to the respondent at the place where he was

apprehended. The trial court also noticed the fact that PW3 had tried to

improve upon his case and cover up the lacunae in the prosecution case.

Again, discrepancies as to the number of officers, who had participated in

the raid and the number of vehicles that were used in the raiding team

have also been adversely commented upon by the trial court in para 37 of

the impugned judgment and the learned Special Judge concluded by

observing that when the very constitution of the raiding team was under a

cloud, how could it have provided corroboration to the prosecution case.

Sealing of the case property by the petitioner/DRI was also found to be

unsatisfactory as has been observed in para 38 of the impugned

judgment. Lastly, the court had observed that there was no evidence

placed on record by the prosecution to establish the presence of PW3 in

the DRI office on 28.07.2009, when he had allegedly tendered his

statement before the IO, PW2. Several other material discrepancies

noticed in the prosecution evidence have been highlighted in paras 42 to

44 of the impugned judgment.

17. Having perused the impugned judgment and considered the

submissions made by the counsel for the petitioner/DRI, this court is of

the opinion that the impugned judgment does not suffer from any

manifest legal error, illegality, arbitrariness or perversity which deserves

interference. Rather, this court is inclined to concur with the conclusion of

the trial court that the petitioner/DRI had failed to satisfactorily discharge

the onus placed on it, for convicting the respondent and therefore, benefit

of doubt was rightly given to him. Accordingly, the present petition is

dismissed, while upholding the impugned judgment.

                                                             (HIMA KOHLI)
JULY 29, 2013                                                    JUDGE
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